1 Introduction

On 23 April 2018, the European Commission – Directorate
General of Justice and Consumers (the "Commission")
proposed a Directive on the protection of persons reporting on
breaches of EU law (the "Proposed Directive") (see
Proposal for a Directive of the European Parliament and of the
Council on the protection of persons reporting on breaches of Union
law, 23 April 2018, COM (2018) 218 final-2018/0106(COD)).

The Proposed Directive aims to strengthen the protection
available to natural or legal persons who report actual or
potential breaches of EU law under EU Member State laws, including
in relation to breaches of EU competition rules. The Proposed
Directive sets out minimum EU-wide standards of protection so as to
encourage more individuals in both the private and public sectors
to help prevent and detect unlawful activities under EU law. The
Proposed Directive is reportedly also aimed at protecting those who
act as sources for investigative journalists to help safeguard
freedom of expression and the freedom and plurality of the media.
While not specifically focused on competition law, it can be
expected that – once implemented – the Proposed
Directive will also serve as encouragement to individuals who have
relevant information about breaches of competition law to alert the
competition authorities.

In the wake of a number of recent large-scale and cross-border
infringement proceedings such as those relating to Dieselgate,
LuxLeaks, the Panama and Paradise Papers and Cambridge Analytica,
it has become clear that individuals play an important role in
revealing potential violations of the law. Although, in many cases,
these violations were identified as a result of individuals
speaking up, they also highlighted the fragmented systems of
protection in different EU Member States and across policy areas
potentially lying at the basis of what has broadly been considered
as an unsatisfactory level of reporting of legal violations.

The Commission conducted a 12-week open public consultation
between 3 and 29 March 2017 inviting views on the issue of
whistleblower protection at the national and EU
level.1

In the words of the Commission, the Proposed Directive seeks to
ensure "that whistleblowers feel safe to report [which]
can lead to effective detection, investigation and prosecution of
breaches of Union law that would otherwise have the potential to
cause serious harm to the public interest". (See
Communication from the Commission to the European Parliament, the
Council and the European Economic and Social Committee,
Strengthening Whistleblower Protection at EU Level, page
3.)

In the context of competition law, the Commission has long
recognised the importance of whistleblowers in the detection and
prevention of infringements of EU competition law in EU leniency
policy, which currently offers companies involved in a cartel and
which self-report and hand over evidence either total immunity from
fines or a reduction of fines which the Commission would have
otherwise imposed on them. The importance of individuals as
whistleblowers was also reiterated with the introduction in March
2017 of the Commission's anonymous whistleblower tool (see the
International Comparative Legal Guide to: Cartels &
Leniency 2018, "Individuals as Whistleblowers",
Ingrid Vandenborre and Thorsten Goetz). The introduction of
whistleblower protection at Member State level will further
strengthen the ability of the Commission and the national
competition authorities to detect and bring to an end competition
law infringements, although it may also have different implications
from a competition law perspective.

2 Background

The protection of whistleblowers is enshrined in a number of EU
fundamental rights and rules as well as international instruments
which require states to incorporate, or consider incorporating,
specific measures to protect reporting persons. For example, the
Proposed Directive references the case law of the European Court of
Human Rights in relation to the right to freedom of expression and
media, the 2014 Recommendation of the Council of Europe on the
protection of whistleblowers (see Recommendation CM/Rec(2014)7 of
the Committee of Ministers to Member States on the protection of
whistleblowers, https://www.coe.int/en/web/cdcj/activities/protecting-whistleblowers)
and international standards and good practices; for example, the
2004 UN Convention against Corruption to which all Member States
and the EU are parties, the G20 Anti-Corruption Action Plan and the
OECD Report of March 2016 on Committing to Effective
Whistleblower Protection.

In particular, the Proposed Directive draws on the 2014
Recommendation of the Council of Europe on the protection of
whistleblowers which sets out a series of key principles and
safeguards to guide Member States when reviewing their national
laws or when introducing legislation and regulations or making
amendments as may be necessary in the context of their legal
systems.

The Proposed Directive reflects the Commission's commitment
to placing greater emphasis on ensuring effective enforcement as
set out in its 2016 Communication EU Law: Better Results
Through Better Application: "Often, when issues come
to the fore – car emission testing, water pollution,
illegal landfills, transport safety and security –
it is not the lack of EU legislation that is the problem but
rather the fact that the EU law is not applied effectively. That is
why a robust, efficient and effective enforcement system is needed
to ensure that Member States fully apply, implement and enforce EU
law and provide adequate redress for citizens. Members of the
public, businesses and civil society contribute significantly to
the Commission's monitoring by reporting shortcomings in the
application of EU law by the Member States. The Commission
acknowledges the crucial role of complaints in detecting
infringements of EU law" (see Communication from the
Commission, C/2016/8600, EU Law: Better Results Through Better
Application and the Annex, https://ec.europa.eu/info/publications/communication-commission-eu-law-better-results-through-better-application_en).

The Proposed Directive followed extensive consultation work
carried out by the Commission in 2017 which consisted of a 12-week
open public consultation, three targeted online stakeholder
consultations, workshops with experts and academics, as well as
external studies and surveys. (See Annexes 1, 2, 13, 14 and 15 on
the Proposal for a Directive on the protection of persons reporting
on breaches of Union law for more details on the procedural
process, http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=620400.)

The Commission's analysis showed that the protection given
to whistleblowers across the EU remains fragmented and uneven
across policy areas. Only 10 EU Member States currently have
comprehensive systems of protection of whistleblowers (namely:
France; Hungary; Ireland; Italy; Lithuania; Malta; the Netherlands;
Slovakia; Sweden; and the UK). In 16 of the remaining Member
States, the protection is partial and/or only applies to specific
policy areas or categories of employees. For example, in Germany,
legislation covering the reporting of specific types of wrongdoing
exists, but there is no comprehensive whistleblowing procedure. The
level of protection very much depends on the type of wrongdoing and
the individual circumstances of the case. In Austria, while the
Federal Competition Authority introduced an electronic anonymous
whistleblowing system in February 2018, there are only few laws in
relation to releasing information in the context of corruption
matters which include provisions relating to the protection of
persons revealing specific wrongdoings. In Spain, there is no
standalone national law providing protection for whistleblowers but
only fragmented legislation that is, in theory, applicable to
whistleblowing cases. In two Member States, Cyprus and Latvia,
whistleblowers appear to have no protection. (See Annex 6 to the
Commission Staff Working Document, Impact Assessment, accompanying
the Proposal for a Directive of the European Parliament and of the
Council on the protection of persons reporting on breaches of Union
law, 23 April 2018, SWD(2018) 116 final, in particular, pages 126,
136, 152–154 and 177.)

The Commission's analysis also showed that the protection of
whistleblowers offered at EU level varies from one instrument to
the other and is often very limited. In addition, the scope and
content of protection is mainly left at the discretion of Member
States: for instance, none of the EU rules regulate the categories
of persons who would be entitled to receive protection. (See
Commission Staff Working Document, Impact Assessment, accompanying
the Proposal for a Directive of the European Parliament and of the
Council on the protection of persons reporting on breaches of Union
law, 23 April 2018, SWD(2018) 116 final, pages 13 and 14.)

The Commission reportedly wants to use whistleblower protection
as a systemic part of enforcement of EU law in those areas with a
clear EU dimension and where the impact on enforcement is the
strongest. These policy areas include competition law and State aid
as well as a number of other areas such as, e.g., public
procurement and financial services, among others, etc. The Proposed
Directive encourages Member States to develop comprehensive
frameworks of protection for whistleblowers that go beyond these
minimum standards.

3 What Does It Mean for EU Competition Law?

Along with other detection and investigation tools, the
Commission's leniency programme has been an important and
successful tool to uncover secretive cartel activities since it was
first put into place in 2006. However, the rise of private damages
actions, including as a result of the legislation and other
measures undertaken by the Commission, has impacted leniency
applications. The Commission notes that while the leniency
programme has been a very successful tool to uncover secret cartel
arrangements that may otherwise go undetected,
"[c]ompanies however increasingly weigh the benefits of
immunity from fines or leniency reductions against the risk of
important payments in follow-on private damage actions"
adding that the "digitalisation and globalisation of
markets have also resulted in complex business models and
distribution systems that would nowadays often require insider
knowledge to detect and successfully investigate". (See
Commission Staff Working Document, Impact Assessment accompanying
the Proposal for a Directive of the European Parliament and the
Council on the protection of persons reporting on breaches of Union
law, 23 April 2018, SWD(2018) 116 final, page 18.)

To alleviate the limitations to the existing reporting
mechanisms and strengthen its fight against cartels and other
breaches of competition law, the Commission introduced in March
2017 an online anonymous whistleblower tool to make it easier for
individuals to alert the Commission about past, ongoing or planned
cartels and other infringements while maintaining their anonymity
(see http://ec.europa.eu/competition/cartels/whistleblower/index.html
and the International Comparative Legal Guide to: Cartels &
Leniency 2018, "Individuals as Whistleblowers",
Ingrid Vandenborre and Thorsten Goetz).

Whilst the whistleblower tool guarantees the anonymity of
whistleblowers, it does not offer protection in the eventuality
that the whistleblower's identity becomes known to those who
have the ability to take retaliatory action against them, such as,
e.g., employers. The Commission's Impact Assessment also notes
that "experience shows that the ability to interact
directly with an identified whistleblower allows for a more
efficient and successful investigative process.Effective
protection for whistleblowers would encourage and enable the
individuals to come forward without fearing retaliation".
(See Commission Staff Working Document, Impact Assessment
accompanying the Proposal for a Directive of the European
Parliament and the Council on the protection of persons reporting
on breaches of Union law, 23 April 2018, SWD(2018) 116 final, page
18.)

Only a limited number of EU Member States have implemented
similar anonymous reporting tools (i.e. Denmark, Germany, Poland,
Romania and Spain). The Commission's Impact Assessment
considers that the introduction of rules protecting whistleblowers
at Member State level "would have a significant impact on
the ability of those authorities to detect and bring infringements
of EU competition law to an end. It would also strengthen the
incentives for companies to come forward and report cartels under
leniency programmes themselves rather than risking detection
through whistleblowing". (See Commission Staff Working
Document, Impact Assessment accompanying the Proposal for a
Directive of the European Parliament and the Council on the
protection of persons reporting on breaches of Union law, 23 April
2018, SWD(2018) 116 final, page 18.)

The same emphasis was already reflected in the Commission's
March 2017 proposal for a Directive to empower the competition
authorities of the Member States to be more effective enforcers
("the Proposed ECN+ Directive"). The Proposed ECN+
Directive sets out, inter alia, minimum standards for the
protection of employees and directors of companies that file for
immunity – that they are protected from individual sanctions,
where they exist, provided that they cooperate with the
authorities. The proposal stipulates at Article 22 that:
"Member States shall ensure that current and former
employees and directors of applicants for immunity from fines to
competition authorities are protected from any criminal and
administrative sanctions and from sanctions imposed in a
non-criminal judicial proceedings for their involvement in the
secret cartel covered by the application, if these employees and
directors actively cooperate with the competition authorities
concerned and the immunity application predates the start of the
criminal proceedings." The provision is designed to
alleviate the risk that the information provided by individuals be
used against them in criminal proceedings. The proposal stresses
the importance of this protection in order to maintain incentives
for companies to apply for leniency because their leniency
applications often depend on their employees cooperating fully,
without fear of incurring sanctions.

The Proposed ECN+ Directive also provides that the individuals
who have knowledge of the existence or functioning of a cartel or
other types of antitrust violations should be encouraged to provide
that information, including through the establishment of reliable
and confidential reporting channels.

The greater emphasis being placed on reporting by individuals
must also be seen in the context of the efforts undertaken by the
Commission to support and encourage private damages actions. While
they impact companies, private damages actions do not target
individual employees and typically have no direct impact on
employees, whether current or former. While agencies encouraging
private damages actions can thus do little to further incentivise
companies to self-report in the wake of increasing damages
exposure, they can incentivise individuals.

Although the Commission Staff Working Document, Impact
Assessment, accompanying the Proposed Directive suggests that the
introduction of protection of whistleblowers at Member State level
would also have a significant impact on the ability of Member State
authorities to detect and bring infringements of EU competition law
to an end and would therefore "also strengthen the
incentives for companies to come forward and report cartels under
leniency programs themselves rather than risking detection through
whistleblowing",it remains to be seen how the success of
individuals reporting competition law breaches to competition
authorities will impact the effectiveness of leniency programmes
for companies.

Companies traditionally rely on employees coming forward in the
context of internal investigations and often on the basis of
carefully designed company compliance programmes that incentivise
employees to self-report competition law breaches within the
company. This internal reporting by individuals is often the basis
for a company's application for immunity or leniency under the
Commission's and/or national corporate leniency programmes. It
would thus be helpful for competition authorities to clarify the
rules on individual whistleblowers, including under the Proposed
Directive, as they relate to the interaction between whistleblower
tools for individuals and the latter's protection and leniency
programmes for companies to avoid a potential further negative
impact not only on the incentives, but also on the ability for
companies to assemble – with the benefit of greater
background and document access – the requisite information to
support an investigative proceeding.

It is noteworthy that when only a few Member State legal regimes
provide for criminal sanctions for individuals that have
participated in competition law violations, the proposal does not
impact sanctions for individual employees. With companies
potentially negatively impacted by the consideration of private
damages actions, and industries and markets becoming increasingly
complex, the EU Commission's proposal appears to acknowledge
agencies' increasing reliance on individuals.

The Proposed Directive does not go as far as, e.g., the UK
Competition and Markets Authority, which offers individuals
financial rewards for information on cartel activities and strict
protection of their identity (https://www.gov.uk/government/publications/cartels-informant-rewards-policy),
but rather aims to offer minimum standards of protection against
retaliation, adequate reporting mechanisms and safeguards against
abusive reporting. The proposal may thus mainly be relevant for
individuals who face no legal sanction themselves as a result of
participation in an alleged violation. Rather, the proposal seeks
to provide protection against retaliatory measures without
providing immunity to the individual concerned itself. To do so
would directly impact, and potentially run counter to, competences
held by individual Member States in relation to the enforcement of
national laws. It may at the same time identify the limitations of
the proposal, at least from a competition law perspective. In
particular, the Proposed Directive distinguishes the
"reporting person" from the "concerned person"
(i.e. the natural or legal person to whom the breach is
attributed). While the Proposed Directive offers protection against
retaliation and effective reporting mechanisms to the former, with
respect to the latter, the proposal offers rights to effective
remedy and fair trial, the presumption of innocence, rights of
defence, and the protection of identity. The Proposed Directive
does not address circumstances where the reporting person is also
the person to whom a breach is attributed, unlike the reporting
mechanisms and immunity programmes under competition law. It is
assumed that if the reporting person is also the person concerned,
then the Proposed Directive would afford them the maximum
protection under both regimes.

It is possible, and perhaps likely, that some Member States will
go beyond the provisions of the proposal to provide greater
protection, and thus greater incentives, to individuals.

Finally, from a competition law perspective, it is also
interesting that the proposal comes at a time when the Commission
published on 11 April 2018 its New Deal for Consumers comprising a
draft Directive on representative actions for the protection of the
collective interests of consumers designed to introduce a
European-wide harmonised, compulsory, compensatory redress
mechanism to protect the collective interests of consumers (i.e.
group or collective damages actions). Like the Proposed Directive,
as background to the proposed collective redress Directive, the
Commission cited large-scale cross-border proceedings, such as the
diesel emissions case, as examples of the difficulties currently
faced by consumers seeking to claim collective redress across
un-harmonised national regimes (see Proposal for a Directive on
representative actions for the protection of the collective
interests of consumers and repealing Directive 2009/22/EC, 11 April
2018, COM (2018) 184 final, 2018/0089(COD)). At present, whilst
injunctive relief mechanisms are available in all Member States
under the Injunctions Directive 2009/22/EC, collective damages
actions are currently not available in all Member States and where
they are available, they are often limited to specific sectors or
areas of law.

We end with a brief discussion of the scope of the protection
set out in the proposal.

4 Why a Directive?

The Directive finds its origins in a direct call for action by
the European Parliament. In two resolutions issued in 2017 on the
legitimate measures to protect whistleblowers acting in the public
interest, the European Parliament "called on the
Commission to present a horizontal legislative proposal to
guarantee a high level of protection for whistleblowers in the EU,
in both the public and private sectors, as well as in national and
EU institutions". (Proposal for a Directive of the
European Parliament and of the Council on the protection of persons
reporting on breaches of Union law, 23 April 2018, COM (2018) 218
final, page 2.)

The Proposed Directive sets out minimum standards of protection,
which could not be adequately achieved by Member States acting
alone or in an uncoordinated manner (Proposal for a Directive of
the European Parliament and of the Council on the protection of
persons reporting on breaches of Union law, 23 April 2018, COM
(2018) 218 final, page 16, Recital 84), leaving Member States the
possibility to introduce or retain provisions more favourable to
the rights of whistleblowers or to go beyond the level of
protection set out in the Proposed Directive (Proposal for a
Directive of the European Parliament and of the Council on the
protection of persons reporting on breaches of Union law, 23 April
2018, COM (2018) 218 final, page 29, Article 19). In this respect,
the existence of a different regime in the UK, that provides, e.g.,
for rewards in case individuals report legal violations, is a case
in point, and other Member States may similarly develop further
protections and/or incentives under their national laws.

The Proposed Directive is also designed to run in parallel to
existing protection in other EU instruments (e.g. EU rules on
employment, EU rules on protection against harassment and violence
at work) and aims to contribute to the implementation of a number
of core EU policies which have a direct impact on the completion of
the single market including competition.

5 Minimum Standards of Protection

The Proposed Directive aims to set out common minimum standards
for whistleblower protection in specifically defined EU law areas
which the Commission consider the impact on enforcement is the
strongest and where whistleblowers are in a privileged position to
disclose breaches.

Under the Proposed Directive, the notions of "reporting
person" and retaliation are based on the Council of Europe
Recommendation on the Protection of Whistleblowers (cited here
above) and are defined in the broadest possible manner to ensure
effective protection. Reporting persons encompass the broadest
possible range of categories of legal or natural persons who
(irrespective of whether they are EU citizens or third-country
nationals), by virtue of their work and/or work-related activities
(irrespective of the nature of these activities and whether they
are paid or not), have privileged access to information about
breaches of EU law and who may suffer retaliation if they report
them. The concept of "reporting person" comprises:
workers within the meaning of Article 45 TFEU; persons having the
status of self-employed, within the meaning of Article 49 TFEU;
shareholders and persons belonging to the management body of an
undertaking, including non-executive members, as well as volunteers
and unpaid trainees; any persons working under the supervision and
direction of contractors, subcontractors and suppliers; and
generally any natural or legal person finding themselves in a
position of economic vulnerability in the context of their
work-related activities. (See Proposal for a Directive Proposal for
a Directive of the European Parliament and of the Council on the
protection of persons reporting on breaches of Union law, 23 April
2018, COM (2018) 218 final, Recitals 24–28 and Articles 2 and
3.)

The Proposed Directive provides that Member States must ensure
that all companies (public or private) with more than 50 employees
or with an annual turnover of over €10 million set up adequate
internal reporting mechanisms to handle whistleblowers'
reports. All State and regional administrations and municipalities
with over 10,000 inhabitants will also be subject to the proposed
rules. While the proposal exempts small companies, the exemption
does not apply to small companies active in the financial sector.
(See Article 4 of the Proposed Directive.)

The protection mechanisms that will have to be set up include
clear and adequate reporting channels, within and outside of the
organisation, ensuring confidentiality of the reporting person, and
a three-tier reporting system consisting of internal reporting
channels, reporting to competent authorities ("if internal
channels do not work or could not reasonably be expected to work
(for example where the use of internal channels could jeopardise
the effectiveness of investigative actions by the authorities
responsible)") and reporting to the public/media
("if no appropriate action is taken after reporting
through other channels, or in case of imminent or clear danger to
the public interest or irreversible damage").

The Proposed Directive suggests that there is no hierarchy
between these reporting channels but that "[p]ersons who
are considering reporting breaches of Union law should be able to
make an informed decision on whether, how and when to
report". (See Recital 47 of the Proposed
Directive.)

The minimum standards to be implemented by the Member States
into national law further include feedback obligations for
authorities and companies who will have to respond and follow up on
whistleblowers' reports within a reasonable time frame, and
provisions relating to the prevention and sanction of all forms of
retaliation. Article 14 of the proposal provides a non-exhaustive
list of the many different forms that retaliation can take. If a
whistleblower suffers retaliation, he or she should have access to
adequate and effective legal remedies. (See Articles 5 to 15 of the
Proposed Directive.)

Because it can be difficult for whistleblowers to prove the
causal link between the reporting and the retaliatory measures,
once the reporting person demonstrates prima facie that
he/she made a report or disclosure in line with the directive and
suffered a harm, under the Proposed Directive, the burden of proof
would shift to the person who committed the harmful action who
would then be required to discharge the burden by demonstrating
that the action taken was not linked in any way to the reporting or
the disclosure. (See Article 15(5) of the Proposed Directive.)

Safeguards to discourage malicious or abusive reports and
prevent unjustified reputation damage are key features of the
proposal. For example, the proposal requires that the reporting
person had reasonable grounds to believe that the information
reported was true at the time of reporting – ensuring that
those who knowingly report wrong information do not enjoy
protection. (See Article 13 of the Proposed Directive.)

Those affected by a whistleblower's report will fully enjoy
their rights under the EU Charter of Fundamental Rights including
the presumption of innocence, the right to an effective remedy and
to a fair trial, and their right of defence. (See Article 16 of the
Proposed Directive.)

The proposal requires Member States to provide for effective,
proportionate and dissuasive sanctions to ensure the effectiveness
of the reporting mechanisms and punish and dissuade any form of
retaliation (direct or indirect), and also to punish and dissuade
malicious and abusive whistleblowing. (See Article 17 of the
Proposed Directive.)

Finally, Member States preserve the possibility of introducing
or maintaining more favourable provisions that go beyond the
minimum standards of protection set out in the Proposed Directive.
(Article 19 of the Proposed Directive.)

6 Next Steps

The Proposed Directive will need to be approved by both the
European Parliament and the Council of Ministers before it becomes
law, a process that can take many months (a first reading typically
takes 15 months and may be followed by a second and third reading
should an agreement not be reached) and lead to amendments to the
present text.

The Proposed Directive is currently in the first reading stage
in the European Parliament. At the time of writing, the Committee
on Legal Affairs has already issued a number of draft proposed
amendments to make the directive "more cross-cutting in
nature and more easily understandable for citizens" and
to possibly extend its scope while deleting the proposed penalties
for malicious whistleblowing. (Draft report by the Committee on
Legal Affairs on the proposal for a directive on the protection of
persons reporting on breaches of Union law
(COM(2018)0218–C8–0159/2018 – 2018/0106(COD),
page 44.)

It will be the responsibility of the Member States to implement
the Proposed Directive, once adopted, into national law in line
with the common minimum standards of protection the Commission has
laid out. The current draft of the Proposed Directive stipulates an
implementation deadline of 15 May 2021, which, however, may change
depending on the timing for the adoption of the Proposed
Directive.

7 Conclusion

While the Proposed Directive is not specifically focused on
competition law, it can be expected to have a material impact on
the Commission's cartel detection abilities. Still, to date,
most cartels are being detected on the basis of the
Commission's leniency programme that allows companies to report
their involvement in a cartel in exchange for immunity from, or a
reduction in, fines. Last year's introduction of the online
anonymous whistleblower tool was a first step by the Commission to
also induce individuals to provide information about competition
law breaches to the Commission with the anticipation that reporting
individuals would increase the likelihood of detection and
prosecution of cartels which, in turn, would further deter
companies from entering or remaining in a cartel. The success of
the anonymous whistleblower tool is dependent on adequate
protection of individual whistleblowers against retaliation, as
well as the reliability of the information provided by the
reporting individuals. The Proposed Directive is designed to close
this perceived gap and to complement the Commission's existing
toolbox comprising its corporate leniency programme and the
anonymous whistleblower tool.

It remains to be seen whether the Proposed Directive, and
national implementation in Member States, focusing on the
individual's protection against retaliatory measures will be
sufficient without providing immunity to the individual concerned
itself and/or providing a financial reward to the individual as
provided under the UK system, in particular in light of the
Commission's and Member State agencies' increasing reliance
on individual whistleblowers for the enforcement of competition
law. It also remains to be seen how the protection will impact
companies' incentives and ability to cooperate.

Another important question that remains open is how the success
of individuals reporting competition law breaches to competition
authorities will impact on the effectiveness of leniency programmes
for companies. The Proposed Directive does not solve, and is not
designed to solve, the interaction and potential conflict between
whistleblower tools for individuals and the latter's
protection, and the continued success of leniency programmes for
companies who often rely on an employee's internal reporting as
one basis for a company's application for immunity or leniency
under the Commission's and/or national corporate leniency
programmes.

Footnote

1. The results are discussed in ICF Consulting Services
Limited's "Study on the need for horizontal or further
sectoral action at EU level to strengthen the protection of
whistleblowers" of 27 November 2017 as well as in the
Commission Staff Working Document, Impact Assessment, accompanying
the Proposal for a Directive of the European Parliament and of the
Council on the protection of persons reporting on breaches of Union
law, 23 April 2018, SWD(2018) 116 final, in particular Annex 2,
pages 65 to 71 – both documents can be found at http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=620400.

Acknowledgment

The authors wish to thank Caroline Janssens, Senior Professional
Support Lawyer in Skadden Arps' Brussels office, for her
contribution to this chapter.

Originally published by The International Comparative Legal
Guide to Cartels & Leniency 2019.

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Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access

No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq

No, please do not send me promotional communications from Mondaq

Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions